Trump picks Kavanaugh for court
Nomination to set off a furious battle
WASHINGTON — President Donald Trump on Monday nominated Judge Brett M. Kavanaugh, a politically connected member of Washington’s conservative legal establishment, to fill Justice Anthony Kennedy’s seat on the Supreme Court, setting up an epic confirmation battle and potentially cementing the court’s rightward tilt for a generation.
The nomination of Kavanaugh, 53, a federal appeals court judge, former aide to President George W. Bush and onetime investigator of President Bill Clinton, was not a huge surprise, given his conservative record, elite credentials and deep ties among the Republican legal groups that have advanced conservatives for the federal bench.
But it will galvanize Democrats and Republicans in the months before the midterm elections. Kennedy, who is retiring, held the swing vote in many closely divided cases on issues such as abortion, affirmative action, gay rights and the death penalty. Replacing him with a committed conservative, who could potentially serve for decades, will fundamentally alter the balance of the court and put dozens of precedents at risk.
Kavanaugh’s long history of legal opinions, as well as his role in some of the fiercest partisan battles of the past two decades, will give Democrats plenty of ammunition for tough questions. Nearly 20 years ago, work-
ing for the independent counsel Ken Starr, he laid out broad grounds to impeach Clinton — words that Democrats can now seize on to apply to Trump and the Russia investigation. Sen. Mitch McConnell, R-Ky., who leads the barest of Republican majorities, had also expressed misgivings about his path to confirmation.
In choosing Kavanaugh, the president opted for a battlescarred veteran of Republican politics but also someone with close ties to the Bush family — a history that aides to Trump said he viewed as a strike against him and had to overcome.
Before serving Bush in the White House, Kavanaugh worked for him in the 2000 presidential vote recount in Florida. When Bush nominated him in 2003 to the U.S. Court of Appeals for the District of Columbia Circuit, Democrats complained that he was too partisan. He survived a contentious confirmation hearing and was confirmed in 2006.
This time, Democrats are still bitter that Republicans blocked President Barack Obama’s nomination of Judge Merrick Garland to fill the last Supreme Court vacancy, created by the death of Justice Antonin Scalia in 2016. Republicans denied Garland a hearing, arguing that the right to name a justice ought to be left to Obama’s successor.
Trump chose Justice Neil Gorsuch, who has voted much as Scalia had, leaving the court’s ideological dynamic basically intact.
Replacing Kennedy will be far more consequential, almost certainly thrusting Chief Justice John Roberts, whose voting record has been more conservative than that of Kennedy, into the crucial median position on the court.
As he did in choosing Gorsuch, Trump turned the selection process into a kind of Supreme Court sweepstakes, conducting a parade of interviews, promising a blockbuster choice and stretching out his decisionmaking over a weekend at his golf club in New Jersey before announcing it in a prime-time appearance at the White House.
But there was less underlying drama than Trump’s theatrical approach suggested. As he did last time, the president chose from a list of two dozen candidates, carefully curated for him by the Federalist Society, which functions as a pipeline to supply conservatives to the federal bench.
Trump narrowed the list to four finalists: in addition to Kavanaugh, Judges Thomas M. Hardiman, Raymond M. Kethledge and Amy Coney Barrett. All four are white, middle-age conservative federal appeals court judges. Three are Catholic; only Kethledge is not.
For Democrats, the nomination sets up a political battle they are almost certain to lose. While Republicans hold a razor-thin margin in the Senate — Sen. John McCain’s absence because of his brain cancer reduces it to 50 seats — a handful of Democrats might vote for the nominee, particularly those running for re-election in states where Trump won in 2016 and is still popular.
Among Democrats facing that dilemma: Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia. All three voted to confirm Gorsuch. Sen. Bob Casey, D-Pa., who is also up for reelection, made his intention to reject Trump’s choice clear hours before he even announced it.
“I will oppose the nomination the president will make tonight because it represents a corrupt bargain with the far right, big corporations, and Washington special interests,” Casey said in a statement.
However slim his odds of success, Sen. Chuck Schumer, DN.Y., the Senate minority leader, framed the confirmation battle as a referendum on the issues most important to Democratic voters.
“Enormously important issues hang in the balance,” he said in the Senate before the announcement. “The right of workers to organize, the pernicious influence of dark money in our policy, the right of Americans to marry whom they love, the right to vote. Two issues of similar and profound consequence are the fate of the Affordable Care Act and a women’s freedom to make the most sensitive decisions about her body.”
Republicans hope the appointment will mobilize their voters as well. But the choice of Kavanaugh is perhaps the most challenging of the four finalists, with lawmakers warning that his voluminous record could prolong the confirmation process, even past the November election.